Dáil Éireann Debate, Wednesday - 20 September 2017
330. Deputy Michael McGrath asked the Minister for Justice and Equality if he will respond to a matter raised in correspondence (details supplied) which could have a significant effect on the operation of the insolvency service. [39577/17]
View answerI am aware of the matters raised in the correspondence to the Deputy, and my officials have arranged to meet shortly in this regard with representatives of those concerned.
I can reassure the Deputy that I do not, at this point, regard these matters as raising systemic consequences for the personal insolvency court review process.
I am advised that the issue raised in the Court decision mentioned appears to be primarily a procedural one: and that the Court held that the application in this particular case had not been brought in the form prescribed by the Circuit Court Rules, and that the correct form must be used.
The Insolvency Service of Ireland, which is the regulatory body for Personal Insolvency Practitioners, has since issued reminder guidance on the procedures which must be followed.
As the Deputy will be aware, section 115A(1) of the Personal Insolvency Acts provides (emphasis added) that:
'... the personal insolvency practitioner may, where he or she considers that there are reasonable grounds for the making of such an application and if the debtor so instructs him or her in writing, make an application on behalf of the debtor to the appropriate court for an order under subsection (9).'
In relation to the concerns raised, the Deputy will be aware that it would be highly unusual, in any proceedings, for a Court to award costs against a professional representative (solicitor, accountant, personal insolvency practitioner…) who acts in those proceedings on behalf of his or her client.
For the Deputy’s information, the High Court has already considered this issue. For example, in Nugent, a debtor, and the Personal Insolvency Acts (no 2) (Baker J, 8 June 2016), the High Court held that ‘the PIP is properly characterised as a non-party for the purposes of considering whether costs should be awarded against him. The PIP has a central role in the procedures under the legislation, but he has no personal interest in the result and any order that is made under the legislation is made for the benefit of, or affects, the debtor in his personal capacity, and not the PIP.’
The Court indicated that it was only in very exceptional circumstances, such as where the person concerned had acted mala fide, that it would consider making any such award.
